Cook v. Cook

NOT
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED

Appeal
from the Circuit Court for Lee County; John S. Carlin, Judge.

Roy W.
Foxall of Roy W. Foxall, P.A., Fort Myers, for Appellant.

No
appearance for Appellee.

PER
CURIAM.

Cindy
Rose Cook appeals a final judgment dissolving her marriage to
Kevin Craig Cook, arguing on appeal that the trial court
erred in failing to award her permanent alimony. We reverse
because the trial court failed to include specific findings
of fact relating to alimony in the final judgment as required
by section 61.08, Florida Statutes (2015).

The
parties' eighteen-year marriage is considered a long-term
marriage for purposes of determining alimony.[1]See
§ 61.08(4). Section 61.08(8) provides that a trial court
may award permanent alimony following a long-term marriage if
the award is appropriate after considering the factors set
forth in subsection (2). Subsection (2) provides that
"[i]n determining whether to award alimony or
maintenance, the court shall first make a specific
factual determination as to whether either party has an
actual need for alimony or maintenance and whether either
party has the ability to pay alimony or maintenance."
(Emphasis added.)[2]

In the
present case, the trial court failed to make any factual
findings regarding the Wife's need and the Husband's
ability to pay alimony as required by section 61.08(2). The
only finding that the trial court made regarding alimony is
the following: "There was no competent substantial
evidence to support the wife's request for alimony. The
Court has reviewed the Wife's alimony claim in accordance
with Florida Statute 61.08."

The
failure of a trial court to include statutorily required
findings of fact to support its denial of alimony is error.
Staton v. Staton, 710 So.2d 744, 745-46 (Fla. 2d DCA
1998); see Abbott v. Abbott, 187 So.3d 326, 329
(Fla. 1st DCA 2016) (reversing final judgment of dissolution
of marriage where "the trial court failed to make any
findings of fact with regard to the Former Wife's need
for alimony and the Former Husband's ability to pay, the
parties' incomes and expenses, and the factors listed in
section 61.08(2)(a)-(j)"). But see Wright v.
Wright, 135 So.3d 1142, 1144 (Fla. 5th DCA 2014) (noting
that a trial court's omission of these findings from the
final judgment is only harmful if the absence of such
findings impedes appellate review).

There
is no transcript of the trial in the record on appeal;
however, the trial court approved the Wife's
"Statement of the Evidence and Proceedings." The
statement of the evidence indicates that the Husband receives
a monthly disability retirement payment of $5146.43, which is
not taxed. Although the statement of the evidence does not
note the Husband's expenses, his financial affidavit
reflects that his monthly expenses are $4866.00, which leaves
him with a monthly surplus of $280.43. Consequently, the
Husband appears to have the ability to pay alimony.

As to
the Wife, the statement of facts notes that she works at
Advance Auto Parts where she earns a net monthly income of
$894.66, and her monthly expenses are $2780.50. Therefore,
the Wife has a monthly deficit of $1885.84 and appears to
have a clear need for alimony. See Doganiero v.
Doganiero, 106 So.3d 75, 77-78 (Fla. 2d DCA 2013)
(holding that award of $100 a month in durational alimony was
woefully insufficient where trial court imputed a $52, 000
income to the husband and a $24, 000 income to the wife). We
note that the trial court's omission of findings hampers
meaningful appellate review in this case, as it is difficult
to discern why the trial court concluded, after considering
the parties' incomes, that there was "no competent
substantial evidence" to support the request for alimony
to the Wife. See id. at 78.

We
reverse the final judgment and remand for the trial court to
make appropriate findings as required by section 61.08.
However, the trial court may, if necessary, reopen the
evidence to address the issue of alimony. All other portions
of the final judgment of dissolution are affirmed.

Affirmed
in part; reversed and remanded in part.

VILLANTI, CJ, and CASANUEVA ...

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